Carrier v. Colvin
ORDER granting 18 Motion to Reverse. Signed by Chief Judge Jeffrey L. Viken on 3/6/17. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
On November 25, 2015, plaintiff Bryan Carrier filed a complaint
appealing the final decision of Nancy A. Berryhill,1 the acting Commissioner
of the Social Security Administration, finding him not disabled. (Docket 1).
Defendant denies plaintiff is entitled to benefits. (Docket 8). The court
issued a briefing schedule requiring the parties to file a joint statement of
material facts (“JSMF”). (Docket 10). For the reasons stated below,
plaintiff’s motion to reverse the decision of the Commissioner (Docket 18) is
A. Berryhill became the Acting Commissioner of Social Security on
January 20, 2017. Pursuant to Fed. R. Civ. P. 25(d), Ms. Berryhill is
automatically substituted for Carolyn W. Colvin as the defendant in all pending
social security cases. No further action need be taken to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 15) is incorporated by reference. Further
recitation of salient facts is incorporated in the discussion section of this order.
On July 22, 2013, Mr. Carrier filed an application for Social Security
disability benefits alleging an onset of disability date of February 1, 2012.
(Docket 15 ¶ 1). On October 13, 2015, the administrative law judge (“ALJ”)
issued a decision finding Mr. Carrier was not disabled. Id. ¶ 3; see also
Administrative Record at pp. 78-94 (hereinafter “AR at p. ____”). On November
12, 2015, the Appeals Council denied Mr. Carrier’s request for review and
affirmed the ALJ’s decision. (Docket 15 ¶ 3; AR at pp. 1-4). The ALJ’s decision
constitutes the final decision of the Commissioner of the Social Security
Administration. It is from this decision which Mr. Carrier timely appeals.
The issue before the court is whether the ALJ’s decision of October 13,
2015, that Mr. Carrier was not “under a disability, as defined in the Social
Security Act, since February 1, 2012, through [October 13, 2015]” is supported
by the substantial evidence in the record as a whole. (AR at p. 94) (bold
omitted); see also Howard v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001) (“By
statute, the findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive.”) (internal quotation
marks and brackets omitted) (citing 42 U.S.C. § 405(g)).
STANDARD OF REVIEW
The Commissioner’s findings must be upheld if they are supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v.
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006); Howard, 255 F.3d at 580. The
court reviews the Commissioner’s decision to determine if an error of law was
committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992). “Substantial
evidence is less than a preponderance, but is enough that a reasonable mind
would find it adequate to support the Commissioner’s conclusion.” Cox v.
Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal citation and quotation
The review of a decision to deny benefits is “more than an examination of
the record for the existence of substantial evidence in support of the
Commissioner’s decision . . . [the court must also] take into account whatever in
the record fairly detracts from that decision.” Reed v. Barnhart, 399 F.3d 917,
920 (8th Cir. 2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir.
It is not the role of the court to re-weigh the evidence and, even if this court
would decide the case differently, it cannot reverse the Commissioner’s decision
if that decision is supported by good reason and is based on substantial
evidence. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). A
reviewing court may not reverse the Commissioner’s decision “ ‘merely because
substantial evidence would have supported an opposite decision.’ ” Reed, 399
F.3d at 920 (quoting Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995)).
Issues of law are reviewed de novo with deference given to the Commissioner’s
construction of the Social Security Act. See Smith, 982 F.2d at 311.
The Social Security Administration established a five-step sequential
evaluation process for determining whether an individual is disabled and entitled
to benefits under Title XVI. 20 CFR § 416.920(a). If the ALJ determines a
claimant is not disabled at any step of the process, the evaluation does not
proceed to the next step as the claimant is not disabled. Id. The five-step
sequential evaluation process is:
(1) whether the claimant is presently engaged in a “substantial
gainful activity”; (2) whether the claimant has a severe
impairment—one that significantly limits the claimant’s physical or
mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively
disabling impairment listed in the regulations (if so, the claimant is
disabled without regard to age, education, and work experience); (4)
whether the claimant has the residual functional capacity to
perform . . . past relevant work; and (5) if the claimant cannot
perform the past work, the burden shifts to the Commissioner to
prove there are other jobs in the national economy the claimant can
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). See also Boyd v.
Sullivan, 960 F.2d 733, 735 (8th Cir. 1992) (the criteria under 20 CFR
§ 416.920 are the same under 20 CFR § 404.1520 for disability insurance
benefits). The ALJ applied the five-step sequential evaluation required by the
Social Security Administration regulations. (AR at pp. 78-94).
At step one, the ALJ determined plaintiff had not been engaged in
substantial gainful activity since February 1, 2012, the alleged onset date of
disability.2 (AR at p. 80).
“At the second step, [the agency] consider[s] the medical severity of your
20 CFR § 404.1520(a)(4)(ii).
“It is the claimant’s burden to
establish that his impairment or combination of impairments are severe.”
Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
A severe impairment is
defined as one which significantly limits a physical or mental ability to do
basic work activities.
20 CFR § 404.1521.
An impairment is not severe,
however, if it “amounts to only a slight abnormality that would not
significantly limit the claimant’s physical or mental ability to do basic work
Kirby, 500 F.3d at 707.
“If the impairment would have no more
than a minimal effect on the claimant’s ability to work, then it does not satisfy
the requirement of step two.”
Id. (citation omitted).
“Severity is not an
onerous requirement for the claimant to meet, but it is also not a toothless
standard . . . .”
Id. at 708 (internal citation omitted).
ALJ found plaintiff performed work in 2012, 2013 and 2014. (AR at
p. 80). Plaintiff also “received payments under the Wounded Warrior Program,
Department of Veterans Affairs benefits, and unemployment.” Id. The ALJ
found “these earnings were not the result of substantial gainful activity.” Id.
impairment must have lasted at least twelve months or be expected to result
See 20 CFR § 404.1509.
The ALJ identified plaintiff suffered from the following severe
impairments: degenerative disc disease of the lumbar spine,3 and tearing and
moderate tendinosis4/mild acromioclavicular joint arthrosis.”5 (AR at p. 80
(citing 20 CFR § 404.1520(c))).
phrase ‘degenerative changes’ in the spine refers to osteoarthritis of
the spine. Osteoarthritis is the most common form of arthritis. Doctors may
also refer to it as degenerative arthritis or degenerative joint disease.
Osteoarthritis in the spine most commonly occurs in the neck and lower back.
With age, the soft disks that act as cushions between the spine’s vertebrae dry
out and shrink. This narrows the space between vertebrae, and bone spurs
may develop. Gradually, your spine stiffens and loses flexibility. In some
cases, bone spurs on the spine can pinch a nerve root — causing pain, weakness
or numbness.” April Chang-Miller, M.D., Degenerative changes in the spine: Is
this arthritis?, Mayo Clinic (Feb. 25, 2017),
refers to internal tendon degeneration. This occurs because
o[f] an imbalance between tendon breakdown and tendon repair. Thus,
tendinosis can result either from an increase in breakdown such as from overuse
or injury, or from a decrease in the healing response.” Rotator Cuff Tendinosis,
Seacoast Orthopedics & Sports Medicine (last visited March 1, 2017),
-- also known as degenerative joint disease -- occurs when
the cartilage that covers the tops of bones, known as articular cartilage,
degenerates or wears down. This causes swelling, pain, and sometimes the
development of osteophytes -- bone spurs -- when the ends of the two bones rub
together. . . . The shoulder is made up of two joints, the acromioclavicular (AC)
joint and the glenohumeral joint. The AC joint is the point where the
collarbone, or clavicle, meets the acromion, which is the tip of the shoulder
blade. The glenohumeral joint is the point where the top of the arm bone, or
humerus, meets the shoulder blade, or scapula. Osteoarthritis is more
commonly found in the AC joint.” Shoulder Osteoarthritis (Degenerative
The ALJ concluded plaintiff’s migraines were not a severe impairment.
Id. at pp. 80-82.
Plaintiff challenges that finding.
(Docket 18 at pp. 3-5).
The ALJ’s complete explanation for finding plaintiff’s migraines were
non-severe is as follows:
The claimant alleged disability due to headaches, however, the
undersigned finds this condition to be nonsevere. In October 2014,
neurological examination was unremarkable (Exhibit 16F/74).
Additionally, in June 2015, the claimant denied headaches (Exhibit
22F/1). Furthermore, in July 2015, imaging of the brain was
unremarkable (Exhibit 20F/l). Moreover, the claimant’s cranial
nerves were grossly intact (Exhibit 21F/6). The evidence does not
significantly limit the claimant’s physical or mental ability to do
basic work activities. As such, the undersigned finds this condition
to be nonsevere.
(AR at p. 81).
Plaintiff argues the medical evidence relating to his migraines
sufficiently supports finding they were a severe impairment.
(Docket 18 at p.
Plaintiff indicates Dr. Jie Liu treated him on multiple occasions from
January to December 2013.
Id. at pp. 3-4.
Dr. Liu recorded plaintiff as
having migraines three to four days each week with effects lasting from three
hours to the entire day.
Id. at p. 3.
Plaintiff highlights the treatment he
received from Dr. Laurie Weisensee, who also recorded plaintiff’s migraines as
occurring three to four times per week.
Id. at p. 4.
Both Dr. Liu and Dr.
Weisensee prescribed plaintiff medication for his migraines.
Arthritis of the Shoulder), WebMD July 20, 2016),
Plaintiff claims “[t]here are no tests that can prove [a person] has
migraines[,]” so the ALJ should not have taken plaintiff’s “unremarkable”
neurological exam and brain imaging and intact cranial nerves as reasons his
migraines were not a severe impairment.
Id. at pp. 4-5.
Plaintiff argues the
ALJ erred in noting plaintiff denied headaches when Dr. Jonathan Wilson
treated him in June 2015 after plaintiff had back surgery.
Id. at p. 5.
Plaintiff asserts Dr. Wilson recommended a CT scan6 of plaintiff’s head to
address dizziness, and plaintiff did not raise the issue of migraines because
he had other serious medical concerns to discuss with Dr. Wilson connected
to his back surgery.
Plaintiff contends his own testimony and his wife’s
statement are consistent with the medical evidence in support of finding his
migraines were a severe impairment.
Defendant argues the court should find the ALJ did not commit error in
concluding plaintiff’s migraines were not a severe impairment.
(Docket 19 at
Defendant asserts the migraines were not severe because plaintiff’s
medical treatment sufficiently controlled their impact on his functioning.
computerized tomography (CT) scan combines a series of X-ray images
taken from different angles and uses computer processing to create
cross-sectional images, or slices, of the bones, blood vessels and soft tissues
inside your body. CT scan images provide more detailed information than plain
X-rays do. . . . A CT scan has many uses, but is particularly well-suited to quickly
examine people who may have internal injuries from car accidents or other types
of trauma. A CT scan can be used to visualize nearly all parts of the body and is
used to diagnose disease or injury as well as to plan medical, surgical or
radiation treatment.” Mayo Clinic Staff, CT Scan Definition, Mayo Clinic (Mar.
at p. 4.
Defendant claims plaintiff cannot demonstrate error warranting
reversal because the ALJ found other severe impairments and plaintiff fails to
show the end result would change if the ALJ found additional severe
Id. at p. 5. (citing Byes v. Astrue, 687 F.3d 913, 917 (8th Cir.
Defendant contends the ALJ’s decision details sufficient medical
evidence underlying her finding on all of plaintiff’s non-severe impairments.
Id. at pp. 5-6.
Defendant claims plaintiff failed to meet his burden in
showing his migraines were a severe impairment because he relies too much
on his own subjective descriptions of symptoms.
Id. at p. 8.
The issue before the court is whether substantial evidence supports the
ALJ’s determination that plaintiff’s migraines were not a severe impairment.
See Kirby, 500 F.3d at 707-08.
As stated above, a severe impairment is one
which significantly limits a physical or mental ability to do basic work
20 CFR § 404.1521.
The ALJ’s explanation for finding plaintiff’s migraines non-severe boils
down to plaintiff stating in June 2015 he was not experiencing headaches and
three instances of records showing an absence of medical evidence of
(AR at p. 80).
“Because migraines constitute a subjective complaint, objective
evidence conclusively showing whether a person suffers from them is
impossible to find.”
Carlson v. Astrue, Civil No. 09-2547, 2010 WL 5113808,
at *12 (D. Minn. Nov. 8, 2010).
Courts recognize this difficulty and
acknowledge “laboratory tests cannot prove the existence of migraine
headaches . . . .”
Wiltz v. Barnhart, 484 F. Supp. 2d 524, 532 (W.D. La.
2006) (citing Ortega v. Chater, 933 F. Supp. 1071, 1075 (S.D. Fla. 1996)); see
Thompson v. Barnhart, 493 F. Supp. 2d 1206, 1215 n.7 (S.D. Ala. 2007)
(collecting cases); see also Creel v. Wachovia Corp., No. 08-10961, 2009 WL
179584, at *8 n.20 (11th Cir. Jan. 27, 2009) (“Neither party has identified any
objective tests that would automatically establish the existence of
neurologically-based migraines, and there appears to be no set standard for
establishing the existence of migraines.”) (citations omitted).
using laboratory tests looking for direct medical evidence, “doctors diagnose
migraines through medical signs and symptoms such as nausea, vomiting,
photophobia7[ and] sensitivity to sound.”8 Carlson, 2010 WL 5113808, at
*12 (citing Duncan v. Astrue, No. 4:06-CV-230, 2008 WL 111158, at *6
(E.D.N.C. Jan. 8, 2008); Ortega, 933 F. Supp. at 1075).
At the same time, plaintiff’s “impairment must result from anatomical,
physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques.
is eye discomfort in bright light.” Photophobia,
MedlinePlus, U.S. National Library of Medicine (May 11, 2015),
is also referred to as “phonophobia.” Zamzil Amin Asha’ari, et al.,
Phonophobia and Hyperacusis: Practical Points From a Case Report, U.S.
National Library of Medicine, National Institutes of Health (2010),
is defined as a persistent, abnormal, and unwarranted fear of sound.”).
physical . . . impairment must be established by medical evidence consisting
of signs, symptoms, and laboratory findings, not only by the claimant’s
statement of symptoms.”
Martise v. Astrue, 641 F.3d 909, 923 (8th Cir.
2011) (citing 20 CFR § 404.1508) (internal quotation marks omitted).
The court finds error in the ALJ’s reliance on three instances of records
showing an absence of direct medical evidence of migraines.
See Stebbins v.
Barnhart, No. 03-C-0117-C, 2003 WL 23200371, at *10-11 (W.D. Wisc. Oct.
21, 2003) (finding error and remanding when the ALJ based a decision on “a
fundamental misunderstanding of the diagnosis and treatment of migraine
The ALJ’s remaining reason for finding the migraines
non-severe, plaintiff’s failure to report migraines during a June 2015
examination, does not save the ALJ’s error.
(AR at p. 81).
One example of
plaintiff denying experiencing headaches is not enough to overcome his
extensive and consistent history with migraine diagnosis and treatment.
The first instance in the record of plaintiff’s migraine headaches is his
military service physical at Camp Pendleton on January 9, 2013, where he
“complained of headaches two to three times a week, pain of 8/10 sometimes,
. . . [and] light sensitivity and noise sensitivity lasting two to three hours.”
(Docket 15 ¶ 19).
On January 15, 2013, at Camp Pendleton’s Concussion
Clinic plaintiff stated experiencing headaches and falling while walking up
stairs due to a “fuzzy feeling . . . .”
Id. ¶ 21.
That same day plaintiff saw
neurologist Dr. Jie Liu and explained his headaches occur “three to four days
a week . . . last[ing] about three to four hours up to the whole day[, . . . and
they] came with photophobia and phonophobia but no nausea or vomiting.”
Id. ¶ 22.
Dr. Liu diagnosed plaintiff with migraines and prescribed
medication to treat the condition.
Plaintiff visited Dr. Liu on March 1,
2013, again reporting headaches, though they had been less intense.
Dr. Liu saw plaintiff on April 2, 2013, when plaintiff claimed
experiencing three migraine headaches in the prior month and Dr. Liu
concluded the migraines were “not well controlled . . . .”
Id. ¶ 35.
Plaintiff visited Dr. Liu next on May 3, 2013, and indicated he had two
migraine headaches “since the last visit and that bright light and noise will
Id. ¶ 45.
On June 3, 2013, Dr. Liu examined plaintiff and
recorded plaintiff experiencing four migraine headaches during the prior
month, but medication helped ease the migraines to an extent.
Id. ¶ 51.
Dr. Liu saw plaintiff on July 1, 2013, and determined plaintiff experienced
one migraine headache since the last visit and it lasted for two days.
Dr. Liu found plaintiff’s migraine headaches were stabilized as four or
fewer instances each month.
On July 18, 2013, plaintiff saw a licensed social worker, Genavieve
Donnelly, and “reported weekly migraines triggered by light sensitivity and
Id. ¶ 63.
On August 13, 2013, Dr. Liu determined the
migraine headaches remained stable.
Id. ¶ 69.
Plaintiff visited Dr. Liu on
December 13, 2013, and Dr. Liu found the migraine headaches were still
stable and diagnosed plaintiff with “migraine . . . improving . . . .”
Id. ¶ 76.
Plaintiff saw a different neurologist, Dr. Laurie Weisensee, on October
22, 2014, and “described chronic daily global dull headaches” and more
severe headaches “three to four times a week . . . with nausea and
Id. ¶ 84.
During this visit plaintiff reported dizziness and
Plaintiff visited Diana Edward for a compensation
and pension exam on January 28, 2015.
Id. ¶ 100.
Ms. Edward noted
plaintiff “suffered from migraines over the past year[,]” including experiences
where the migraine headaches “last 24 hours” and “cause nausea[ and]
dizziness . . . .”
The court is mindful of the portions of the record indicating medication
may have alleviated plaintiff’s migraines to an extent.
Id. ¶¶ 33, 43, 51, 58,
69 & 70. “If an impairment can be controlled by treatment or medication, it
cannot be considered disabling.”
Wildman v. Astrue, 596 F.3d 959, 965 (8th
Cir. 2010) (citing Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004))
(internal quotation marks omitted).
When “migraine headaches are
controllable and amenable to treatment, they ‘do not support a finding of
Martise, 641 F.3d at 924 (quoting Davidson v. Astrue, 578 F.3d
838, 846 (8th Cir. 2009)).
However, in addition to the many medical findings
supporting plaintiff’s migraines being severe, there are points in the record
where the migraines were found “not well controlled . . . .”
(Docket 15 ¶¶ 35,
45); see Carlson, 2010 WL 5113808, at *10-11 (finding migraines not
controlled when “medication provided only partial and intermittent relief”).
Plaintiff’s more recent medical examinations in October 2014 and January
2015 reinforce the claim his migraines were severe.
(Docket 15 ¶¶ 84, 100).
The statement from Sandra Carrier, plaintiff’s wife, further supports
his argument his migraines severely impaired him.
(AR at pp. 324-32).
explains plaintiff cannot experience loud sounds or bright lights and certain
odors trigger his migraines.
Id. at pp. 324, 327, 329 & 331.
statement provides a source beyond plaintiff’s own claims to demonstrate the
severity of plaintiff’s migraine headaches.
See Martise, 641 F.3d at 923
(requiring more than the claimant’s subjective statements to show a severe
The court finds the ALJ erred in determining whether plaintiff’s
migraines were a severe impairment.
See Stebbins, 2003 WL 23200371, at
Considering the evidence that “fairly detracts from [the] decision[,]”
the court finds substantial evidence does not support the ALJ’s
See Reed, 399 F.3d at 920.
The ALJ’s reliance on
“unremarkable” neurological exams (AR at p. 81) “was a fundamental
misunderstanding of the diagnosis and treatment of migraine headaches.”
Stebbins, 2003 WL 23200371, at *10; see Thompson, 493 F. Supp. 2d at
1215 n.7 (collecting cases).
Detracting from the ALJ’s determination is
plaintiff’s extensive history of migraine treatment and diagnosis for related
symptoms such as phonophobia, photophobia, dizziness and nausea.
(Docket 15 ¶¶ 15, 21, 22, 35, 45, 63, 84 & 100).
Ms. Carrier’s statement on
her observations of plaintiff’s migraines reinforces the medical history
through a source other than the plaintiff.
(AR at pp. 324, 327, 329 & 331).
Defendant argues any error in the ALJ’s severity determination on
plaintiff’s migraines does not warrant remand unless plaintiff can
demonstrate a different result would have occurred without the error.
(Docket 19 at p. 5).
“To show an error was not harmless, [plaintiff] must
provide some indication that the ALJ would have decided differently if the
error had not occurred.”
Byes, 687 F.3d at 917 (citations omitted).
The ALJ’s error in determining the severity of plaintiff’s migraines is not
harmless because it impacts areas of the ALJ’s decision beyond the step two
Failure to identify all of a claimant’s severe impairments impacts
not only the ALJ’s credibility findings, consideration of activities of daily
living, but most importantly, a claimant’s residual functional capacity
(“RFC”).9 “[F]ailure to consider plaintiff’s limitations . . . infect[s] the ALJ’s
. . . further analysis under step four.”
Spicer v. Barnhart 64 Fed. Appx. 173,
178 (10th Cir. 2003).
supra Standard of Review at p. 4. Before considering step four of the
evaluation process, the ALJ is required to determine a claimant’s RFC. 20 CFR
§ 404.1520(e). RFC is a claimant’s ability to do physical and mental work
activities on a sustained basis despite any limitations from his impairments.
20 CFR § 404.1545(a)(1). In making this finding, the ALJ must consider all of
the claimant’s impairments, including those which are not severe. 20 CFR
§ 404.1545(e). All of the relevant medical and non-medical evidence in the
record must be considered. 20 CFR §§ 404.1520(e) and 404.1545.
The ALJ gave “no weight” to Dr. Liu’s opinion “because it is inconsistent
with her own and other objective findings.”
(AR at p. 89).
statement received “little weight” in the ALJ’s analysis because the ALJ found
it inconsistent with several medical findings.
Id. at p. 91.
determined plaintiff’s statements regarding his symptoms were “not entirely
credible for the reasons explained in this decision.”10 Id. at p. 84.
conclusions of the ALJ refer almost exclusively to plaintiff’s back and
shoulder impairments—not his migraines.
Id. at pp. 83-91.
medical support for plaintiff’s migraines outlined above, the weight given to
these opinions and statements may be greater if the ALJ incorporated
migraines into the analysis.
See supra Step Two at pp. 11-13.
of migraines in the ALJ’s analysis on these points is understandable since the
ALJ erroneously analyzed the severity of plaintiff’s migraines.
But the absence also provides sufficient “indication that the ALJ
would have decided differently if the error had not occurred.”
See id. at
Byes, 687 F.3d
If the ALJ did not commit the mistakes described above regarding
plaintiff’s migraines, there is “some indication” the ALJ would have come to a
different conclusion in plaintiff’s case.
Id.; Carlson, 2010 WL 5113808, at
court recognizes the ALJ identified some potentially important
inconsistences in plaintiff’s case. (AR at pp. 86-87). These include plaintiff
receiving unemployment benefits and his various physical activities. Id.
Although these facts may stand out in plaintiff’s case, they do not alter the
court’s finding regarding the ALJ’s error in assessing plaintiff’s migraines.
This is further supported by the reasons for granting greater weight to
Dr. Liu’s opinion on plaintiff’s migraines.
Dr. Liu is a neurologist who
treated plaintiff, and Dr. Liu’s medical conclusions find support in the record.
See supra Step Two at pp. 11-13.
“Migraine headaches generally are treated
by neurologists, [and a]s such, a neurologist’s opinion regarding migraines
should be granted greater weight.”
Carlson, 2010 WL 5113808, at *15
(citing Stebbins, 2003 WL 23200371, at *13); see Kelley v. Callahan, 133 F.3d
583, 589 (8th Cir. 1998) (finding a treating specialist’s opinion is entitled to
greater weight than the opinions of nonspecialists where the specialist’s
opinion is supported by clinical data).
To determine whether plaintiff could perform past relevant work, the
ALJ relied on the statement of a vocational expert who “testified that if an
individual had the [plaintiff’s] residual functional capacity, such an individual
could perform the . . . past relevant work as a fast food worker.”
However, “[i]f a hypothetical question does not include all of the
claimant’s impairments, limitations, and restrictions, or is otherwise
inadequate, a vocational expert’s response cannot constitute substantial
evidence to support a conclusion of no disability.”
Cox v. Apfel, 160 F.3d
1203, 1207 (8th Cir. 1998) (citation omitted); see Carlson, 2010 WL 5113808,
at *17 (“Where the ALJ’s RFC analysis was in error, as in this case, it cannot
be the basis for a proper hypothetical question to a vocational expert.”)
The ALJ’s error detailed above “seriously undercut[s] the validity of
other areas of the ALJ’s decision.”
Carlson, 2010 WL 5113808, at *17 (ruling
on an ALJ’s error in evaluating a claimant’s migraines).
As a result of
concluding “the ALJ’s decision is not based on substantial evidence on the
whole, ‘[the court has] no confidence in the reliability of the RFC upon which
the ALJ based [her] decision.’ ”
Id. (quoting Snead v. Barnhart, 360 F.3d
834, 839 (8th Cir. 2004)).
Based on the above analysis, it is
ORDERED that plaintiff’s motion to reverse the decision of the
Commissioner (Docket 18) is granted.
IT IS FURTHER ORDERED that, pursuant to sentence four of 42 U.S.C.
§ 405(g), the case is remanded to the Commissioner for rehearing consistent with
Dated March 6, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
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